UNDERSTANDING COMPANIES, SHARES AND LIMITED LIABILITY

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الحمد لله رب العلمين و الصلوة و السلام على سيدالانبياء و المرسلين

In response to recent concerns regarding the difference of opinion in the Shar’i permissibility of shares, stocks, companies, the concept of limited liability and other interrelated transactions; this treatise is being presented investigating the realities of these modern business practices and examining how they fare in terms of the Sharia. This discourse commences by providing an understanding of these commonly misunderstood financial aspects. Thereafter, it proceeds to mention various points of contention in regards to such misunderstandings between those who permit shares and those who prohibit them. In conclusion, the reasons of impermissibility in light of the proofs presented will be presented.

CHAPTER ONE

UNDERSTANDING COMPANIES, SHARES AND LIMITED LIABILITY

The majority of information in this chapter has been summarized from the book, “Islam aur Jadid Ma’ishat wa Tijarat” authored by the honorable Mufti Taqi Uthmani. The views and understanding of the workings of shares are of those Ulama who deem shares permissible.

Understanding of a Company:

In a Shirkah (partnership), every individual is deemed to have his own independent ownership in the business. Depending upon the amount of capital invested by the partner, proportionately he will be an owner of the business as well as all of its assets and liabilities. The assembly of partners in this type of business is known as the partnership. However, in a company, the collection of these individuals is established as one “juristic person.” This juristic person is then referred to as the company.[1] This company performs all the functions of the business as a separate legal entity and not as an agent for the partners of the company. It bears its own rights and responsibilities and accepts and bestows ownership in its own individual capacity as opposed to playing the role of a Wakeel (agent). A more detailed explanation of a juristic person is forthcoming.

The Difference between a Partnership and a Company:

1. Every individual in a partnership is an owner of the assets and liabilities of a company in an undivided[2] manner. Each partner acts as an agent for the other partners. Every partner shares the same degree of liability such that if one partner incurs a debt on behalf of the business, all the partners will be equally liable for it. On the contrary, a company does not function in this manner. A company is a“juristic person” and in theeyes of the law, it has its own independent existence apart from the existence of the shareholders. The esteemed Ulama who deem shares permissible are of the view that shareholders own the assets of the company. Because of this ownership, in the event of dissolution of the company whereby some residual assets remain, they will share in the assets proportionate to their investment. However, before the dissolution of the company, shareholders are by law not able to transact in the assets of the company. It is for this reason that an indebted shareholder’s personal assets, including his shares in the company, can be seized to pay off his debts; however, the company’s assets proportionate to his share allocation cannot be seized. The laws of the company do not allow outside transaction in any of its assets. However, other Ulama disagree with this supposition of shares as will be discussed further.

2. If an indictment is laid by or against any of the partners of the business, all of the partners will collectively assume the role of the plaintiff or defendant. On the contrary, a company is an independent “juristic person”; hence, it will become the plaintiff or defendant in its individual right in a court of law and not the shareholders.

3. Outside of the partnership, there is no independent existence contrary to a company which is considered an independent “juristic person.”

4. If any partner wishes to annul his partnership and reclaim his capital, he may do so. In a company, a shareholder will not be able to recover his investment. He can only sell his shares as an alternative.

5. In a partnership, the liability is generally not limited to its assets contrary to a company. The partners in their personal capacities and properties can be sought to fulfill unpaid debts.

Initiation of a Company:

The first step in initiating a company or incorporating an existing business is obtaining approval for the proposed name of the company. The second step involves drawing up a Memorandum of Association. This Memorandum includes the name of the company, the classification of the company, its authorized share capital, and the subscribers (original shareholders of the company). The next step is drawing up the Articles of Association. These are the regulations and principles that govern the relationship between the shareholders and directors of the company. The Articles of Association coupled with the Memorandum of Association makes up the constitution of a company. Once the legal requirements are met for incorporation, the relevant fees paid and the corresponding paperwork submitted, permission must be granted from the government in order for the company to come into existence as a separate legal entity commonly referred to as a “juristic person.”[3] Once the company comes into existence, it will be necessary for it to issue a prospectus before it can solicit funds through the sale of shares to the public. In this manner, the public will be informed regarding the inner workings, business and finances of the company in order to assess whether they deem it profitable to invest in it.

Shares of the Company:

Once a specific amount of capital is paid to the company, the company issues the investor a certificate stating that the individual has a certain vested portion of funds in the company. This certificate is what is referred to as a “share.”[4] According to some, the share represents one unit of the equally divided capital of a company. For example, if a company maintains $10 million of capital and they issue 10 million shares, the value of each share will be valued at one dollar. There is a difference of opinion among the Ulama in regards to what a share actually represents. Does it represent an actual percentage of ownership of the company and its assets or does it merely represent a percentage of rights to claim proportionate dividends (profit) without ownership? This issue plays a pivotal role in the permissibility or impermissibility of shares. This topic will be discussed in detail in the subsequent chapters, insha-Allah.

An Illustration of the Workings of a Company:

The company is technically a “juristic person” which enjoys the legal rights and responsibilities of transacting given to natural persons. However, considering the fact that it is not a natural person that can act and think for itself, a group of shareholders will be designated as a Board of Directors to represent its interests. The Board is generally elected by the shareholders of the company. The Board of Directors will then elect one person as its head known as the Chief Executive. Once a year, all the shareholders will conduct a meeting to discuss the various affairs and policies of the company.

Assets:

1. Current Assets: These are such assets that are either current cash or easily turned into cash. These are of four types:

a. Cash:

b. Accounts Receivable:

c. Notes Receivable:

d. Investments: any capital invested by the company into another company or business.

2. Fixed Assets: These are such assets that are not easily turned into cash such as property and equipment etc.

3. Non Tangible Assets: These are such non-monetary assets that cannot be perceived by the senses that develop over time with effort. Some types of intangibles are trade secrets, copyrights, patents, the company’s brand name and goodwill. Despite the fact that these assets are not physical in nature where by some physical value can be attached to them, they can have great value to a company and to its profits.

Liabilities:

Current Liabilities: debts or obligations of a company due within one year. Essentially, these are bills that are due to creditors within a relatively short period of time.

Long Term Liabilities: liabilities of a company for leases, loans, bonds and other items not due within one year.

Distribution of Earnings:

Once a year, the company will account for its losses, earnings, assets and liabilities. If the company yielded earnings higher than its liabilities, it will distribute the earnings known as “profit”. First, a specific percent of the earnings will be allocated to its Reserve. This is a precautionary measure for future unknown expenses and liabilities. After allocating this reserve amount, the remainder of the earnings will be termed as “dividends” which are distributed to the shareholders. The earning of the company as a whole is termed “profit” whereas the earnings of the shareholders are termed “dividends.”

Limited Companies:

Limited Liability refers to the company bearing a limited or restricted liability to its creditors. The company will only be legally responsible to pay off any debts or liabilities to the amount of its assets. Additionally, the shareholders of the company are limited in liability to the extent of their investment. Neither the company nor its shareholders will be responsible to pay creditors above and beyond these limitations. If the company suffers any loss, the most that the shareholder will lose is his capital investment. If the company incurs a debt, the shareholders cannot be sought to fulfill that debt. In the event of bankruptcy, only the assets of the company can be seized and it cannot be sought for anything beyond that. For this same reason, it is binding upon such companies to affix words like Limited etc to their company name. In this manner, the creditor can be aware that in the event of a debt, there is a restricted level of liability.

CHAPTER TWO

POINTS OF CONTENTION

The Concept of a Company as a Juristic Person:

The first point of contention lies in the Shar’i permissibility of a company. There are five types of Shirkah (partnership) as mentioned in the books of Fiqh, namely,Shirkat al-Mufawadah, Shirkat al-Inan, Shirkat al-Sani’, Shirkat al-Wujuh and Mudarabah. Muhtaram Mufti Taqi Uthmani states that some Ulama contend that since a company does not fall within the parameters of any one of these five, it will not be a permissible form of partnership. He then disproves such a rationale by stating that the categorization of these five types of partnerships from the Fuqaha (Jurists) does not constitute a binding proof since the Fuqaha never mentioned that if a partnership does not fall within the classification of these five types of partnership, it would not be permissible.

We accede to the fact that a company cannot be deemed impermissible simply because it does not fall under one of these five types of partnerships. However, by looking at the individual rudiments of each type of partnership, general all-encompassing principles and preconditions can be extracted for all partnerships. If the company adheres to these principles then such a company will be permissible, otherwise not. One such principle derived by the Fuqaha is that profits from a Shirkah are derived from one of three avenues; ownership of the assets, work provided upon the assets as a Mudarib or by bearing liability of the assets despite not being the owner. [5]

In the case of a shareholder, not a single one of these three factors is found entitling the shareholder a right to the profits. Thus, how can it be argued that a company falls under the ambit of Shirkah (partnership) when its corollaries oppose the rudimentary characteristics of partnership?

Another contentious issue involves the Shar’i recognition of the concept of a “juristic person.” For the benefit of those who are not versed in legal and financial terminology, we present hereunder a definition and description of a “juristic person” as presented in the books of law:

"We already know that the law regards a human being as a legal subject the natural person. But the law also provides for the recognition of entities, called juristic persons, which may take the form of a company or close corporation in the commercial world. (An "entity" can be described as something that exists independently, that is, apart from the members of which it consists. Note that a partnership is not a juristic person, because it does not exist as an entity apart from its members.) It is important for you to realize that a juristic person is not a human being. The only similarity between a natural person (human being) and a juristic person is that a juristic person also has legal capacity and is therefore the bearer of rights and duties. Furthermore, you must remember that it is not the human beings within, for example, a company, who are the juristic persons; it is the company itself that is the juristic person. The company, a juristic person, exists as an independent entity. ..It has an identity that is separate from its shareholders or members and it owns the assets and incurs the obligations of the undertaking (the company). If the undertaking (the company) becomes insolvent, only the assets or property of the undertaking will be seized, and not the assets of any shareholder or member, because the undertaking is a separate entity.”[6]

Some Ulama are of the opinion that the concept of a juristic person as a viable entity with its own financial responsibility capable of entering into transactions, taking possession and bestowing ownership is valid and acceptable in Shariah. However, other Ulama oppose this opinion. In argument in favor of its permissibility, the esteemed Mufti Taqi Uthmani presents four examples of the concept of a juristic person in the Shariah, namely Waqf, Bait al-Mal, the residual wealth of an insolvent person and Khultat al-Shuyu’. [7]

The purpose of this exposition is not to delve into the legitimacy of a juristic person as that will entail an in depth explanation leading to undue length which will draw attention away from the actual matter of discussion. For the sake of brevity, we will explore the consequences of both scenarios, namely, assuming its permissibility and its impermissibility. This will be discussed in the final chapter, insha-Allah. At present, we will suffice on presenting the following passage which alludes to its impermissibility.

“The Rukn (basic element) of Tasarruf (transacting) is legally acknowledged speech and that can materialize from slaves. As for considering speech, it is based on the reason that it emanates from a discerning individual and this is not absent from slaves. The emplacement of Tasarruf is a personal liability capable of obligating legal claims upon itself and that is not negated due to slavery. The capability of obligating something in one’s liability is from the honorable traits of humanity and a person does not cease being a human due to slavery.”[8]

This passage clearly elucidates that only human beings have the capability and right of conducting transactions and obligating claims as opposed to the theory allowing abstract non-existent entities such as juristic persons to carry out the same.

Limited Liability:

As previously mentioned, Limited Liability is a concept that limits the amount of accountability for which a shareholder is accountable. The shareholder cannot be held legally responsible above and beyond his capital investment. A brief history of limited liability shows that in and around the middle of the 19th century, various laws such as the Limited Liability Act of 1855 were enacted legalizing the concept in numerous western countries. This edict was enacted as a means of spurring economic growth in certain limited sectors. Originally, this concept was considered nefarious due to the inequitable imbalance of risk to gain. In fact, in countries such as England, a company needed a decree from Parliament before being registered as a Limited Liability Company. By limiting the shareholder’s legal responsibility and risk of losing his personal assets, the shareholder will invest more of his capital. More access to this capital will increase the productivity and profitability of the company. Furthermore, the directors and founders of the company, being practically untouchable in terms of fulfilling the debts of the creditors, invest in more precarious, high-profit ventures without fear of accountability. Charlie Cray states the following, “Thus, ‘limited liability’ refers to the fact that outside “investors” (versus active participants) can pool their capital in new ventures without worrying that they might lose their entire worth. It allows those with significant wealth to make capital available for research, innovation and technical progress, without having to oversee the management of their investment on a daily basis. Thus, the limited liability corporation has been considered a key feature of economic progress.”[9]

However, this economic progress comes at a price. The question then arises, “What is the price? And, who bears the burden of this price?”

Jacqui Cohen alludes to the answer in her thesis entitled Externalizing of Risk,andstates, “A further advantage of limited liability is that it allows companies to externalize the risk involved with modern industrial enterprise and passes the risk to the creditor.”[10]

Explaining further, Lawrence Mitchell, in Corporate Irresponsibility presents the following, “Because it shields the owners and managers from personal liability, limited liability creates what economists call a moral hazard, an increase in the risk of bad behavior because the costs of that behavior are shifted onto someone else (creditors).” Put more blatantly he states, “defining limited liability is simple. … no matter how much pain it causes, the corporation is responsible for paying damages (if at all) only in the amount of assets it has…You can’t go after the stockholders for any more than they’ve invested. You can’t go after the managers or employees except in limited and largely irrelevant cases. No matter what kinds of harms the corporation causes, and no matter what kinds of judgments a court may levy against it, it must pay only what it has.”[11]

Summing up the unjust disproportion of Limited Liability, Jacqui Cohen reiterates, “Accordingly, the most a member in the company can lose is the amount paid for the shares themselves and thus the value of his/her investment. As such, creditors who have claims against the company may look only to the corporate assets for the satisfaction of their claims as creditors and generally cannot proceed against the personal (separate) assets of the members. This has the effect of capping the investors risk whilst, consequently, their potential for gain is unlimited.”

The concept of Limited Liability where the risk of the investment is placed on the credulous creditor and the potential of profit rests as the sole privilege of the investor glaringly contrasts the ethical economic principles laid down by the Shariah which demand equity and justice.

Shariahas well as elementary ethics demand that the opportunity for gain be coupled with the risk of liability.

The circumstance of this judgment was that one person sold a slave to another person who assigned the slave to work in the market and reaped proceeds from his labor. Shortly thereafter, the purchaser discovered defects in the slave which led him to return the slave and demand a refund. The seller insisted that in exchange of the refund, the purchaser should return the slave as well as the proceeds earned through his work. The two presented their case to Rasulullah صلى الله عليه و سلمwho decreed that the purchaser of the slave was entitled to keep the proceeds because the proceeds were earned in a period where he was liable for the slave. Had the slave passed away during that period, the purchaser would have been liable for the loss; thus, he was entitled to the earnings. Decreeing in favor of the seller would have sanctioned him receiving profit and proceeds without being liable for any loss. That would be unfair and unethical, thus Rasulullah صلى الله عليه و سلمprohibited it. This concept is more clearly presented in another Hadith wherein Rasulullah صلى الله عليه و سلمstated, “There is no profit without liability.”[13]

قال رسول الله صلى الله عليه وسلم:ولا ربح ما لم يضمن

From these Ahadith, it becomes clear that the moral philosophy of Islamic Finance and Commerce differs from the self-centered ‘dog-eat-dog’ business policies of the modern era. The notion of Limited Liability pierces the heart of ethical economics as alluded to by even non-Muslim western critics such as the following editorial of The Times of London of 25 May 1824. It declared: “Nothing can be so unjust as for a few persons bounding in wealth to offer a portion of their excess for the formation of a company, to play with that excess to lend the importance of their whole name and credit to the society and then should the funds prove insufficient to answer all demands, to retire into the security of their unhazard fortune, and leave the bait to be devoured by the poor deceived fish.”[14]

“O you who believe, do not devour each other‘s property unjustly, save through trade conducted with your mutual satisfaction.”(4:29)

In the case of Limited Liability companies, how can it be perceived that the creditor would be content and complacent to lose his commodities without being recompensed for them? The company and the shareholders, protected by the law of the state, merely abdicate the responsibility to pay their debts after enjoying the profitability and productivity of the commodities!

The Honorable Mufti Taqi Uthmani holds the view that this concept could be permissible according to the Shariah and in Islam aur Jadid Ma’ishat wa Tijarat, he presents a Shar’i example for it. The example presented is what in Fiqh is termed as Al-Abd al-Madhoon, namely, a slave who is permitted to work. In such a scenario, a master permits his slave to trade and conduct business. The master will stipulate a specific fee upon the slave for this liberty of trade. This creates an opportunity for the slave to work his way to freedom. When he fulfills a predetermined amount stipulated by the master, the slave purchases his freedom. If during the course of trade he becomes indebted, he can be sold in lieu of the debt. The master will not be liable for the debt of the slave. Thus, according to the Honorable Mufti Taqi Uthmani, a similar case applies to the shareholders of a company. The shareholders are similar to the slave owner and the company is like the slave. If the company becomes indebted, the shareholders will not be held liable. Despite the fact that outwardly this seems like a clear example of Limited Liability to the layman, in reality the two examples have a great deal of dissimilarity. The Fuqaha (Jurists) mention that partnership is based on Wakalah (agency).[15]

Since the company and its directors, according to those who permit shares, act as agents on behalf of the shareholders, the transactions in reality take place on behalf of all the shareholders as if they themselves conduct the business deals. A company bearing a debt, in reality symbolizes the shareholders bearing that debt. Hence, the shareholders are responsible to uphold the conditions of all the contracts and liable for any deficiency. On the contrary, the slave is not considered as an agent for his master. The slave possesses his own Milk al-Yadd, (authority of possession). His business dealings are restricted to himself for himself, excluding the fact that he happens to be the property of the master and obliged to pay his monthly dues. As such, the slave’s transactions are not considered as the master’s transaction since he is not conducting business on behalf of the master. If the slave incurs a debt, the debt will be restricted to him and would not transfer to the master. As a means of protecting the public from uncollected debts of working slaves, the Shariah permitted selling the slave as a means of fulfilling the debt. Since the slave is not considered as an agent of the master, the creditors are not allowed to demand the master to fulfill the outstanding debts. However, they can force him to sell the slave and collect their debts from the sale. A further distinction between the slave and the company is that in the event that the sale price of the slave fails to cover the debt of the creditors, they still maintain the right to pursue the slave for the remainder of the debt after his freedom.[16]

In the case of a company, there is no such recourse for creditors after the company has claimed insolvency.

In conclusion, the Shariah has stipulated one particular set of rules for a slave permitted to work and a different set of rules for partnerships. It is not proper to analogize one to the other especially in light of clear Ayah and Ahadith as mentioned above.

Ownership of Shares:

Before delving into the discussion of the permissibility or impermissibility of shares, it is imperative to get a proper understanding and denotation of shares. The crux of the difference of opinion regarding the legitimacy of shares pivots around what the word “share” denotes. Ulama who permit trade in stocks and shares perceive shares representing one connotation whereas the Ulama who prohibit it argue that shares represent a different connotation. We will commence by presenting the understanding of shares by those who deem it permissible. Thereafter we will present the view of the Ulama who disagree coupled with proofs and explanations of the experts of the financial and legal sectors.

Understanding of the Ulama who permit Shares:

The Ulama who surmise that shares are permissible consider them to represent definitive ownership of the assets of the company proportionate to their investment. Respected Mawlana Mujahid al-Islam Qasimi states in his compilation, Jadid Fiqhi Mabahith, “the Ulama are unanimous that a purchased share from a company represents the ownership of the shareholder. It is for this reason that when everyone mutually agrees to dissolve the company, the shareholders will receive a proportionate percentage of the assets.” Respected Mawlana then presents approximately 25 – 30 names of other Ulama who agreed upon this understanding of shares.[17]

Honorable Mufti Taqi Uthmani states “These shares in reality represent a proportionate percentage of the shareholder’s ownership in the assets of a company.”[18]

After being asked about shares, esteemed Mawlana Ashraf Ali Thanwi by and large permitted shares with the condition that no Haram transactions take place. This was based on the perception that the shareholder owned the assets of the company in proportion to his investment. The following is the question and its reply:

Q: It has become rife that many people establish partnerships and start companies. Thereafter they conduct business and sell a majority of the shares. Those who purchase these shares receive a proportionate profit from the earnings of the company. At times it will be more and at times it will be less. Similarly, if the company bears a loss, then the shareholders will be responsible for a proportionate amount of loss in their respective shares. Will purchasing such shares be permissible or not? (Note: the answer of Mawlana Ashraf Ali Thanwi is given based upon the understanding of shares given by the questioner. In reality, shares do not function exactly in this manner.)

A: Trade companies conduct business in various fields (some permissible and others not) and are at times involved in interest-bearing transactions. Considering the fact that each shareholder is an owner of his own portion (of the company) and that the directors are the agents of the shareholders in the transactions whereby the acts of the directors are attributed to the shareholders according to the Shariah, if any impermissible transactions take place, and they definitely do, to such an extent that they even receive interest from Muslims, then this will be considered as if the shareholders themselves conducted it. Therefore, it will not be permissible to become a member of such a company…(the understood meaning of this Fatwa based upon the previous Fatwa on the same page is that if Haram transactions like interest-bearing loans don’t take place, it will be permissible.)[19]

In establishing the ownership of the assets by the shareholders, the majority of the Ulama present the following two substantiations:

1. The shareholder receives an equal portion of the profits as well as suffers from the loss of value in his share as opposed to bonds where he is guaranteed to receive his original investment as well as a certain fixed percentage of interest regardless of whether the company is profitable or not.

2. The shareholder is entitled to receive the residual assets of the company after dissolution in proportion to his shares as opposed to receiving the exact value of the share certificate as in the case with bonds and other loans. [20]

In the above-mentioned substantiations, it is clearly visible that these Ulama are basing their understanding of shares in comparison to bonds[21], bills, notes and similar types of loans. Bonds generally refer to a long-term loan to the company where the company guarantees the return of the principle amount of the bond certificate coupled with a specific amount of interest upon maturity. Regarding these types of loans, it is unanimously agreed that the owners of these certificates do not own any assets of the company and that any surplus on his original investment will be interest (Riba). Furthermore, in the event of bankruptcy, owners of bonds and bills etc are entitled to receive the full amount mentioned on the bond certificate as opposed to shares certificates. The Ulama who permit shares compare the characteristics of shares to bonds and other loans and infer that shares must denote ownership of the assets since there is such a distinct difference with the loans. However, merely having the right to receive residual assets after dissolution and the lack of assurance of profit on the investment does not necessarily denote ownership of assets. Generally, when a person owns partial assets of a company, the above two characteristics will be found. However, ownership of assets is not the sole cause of this effect. There could be many other causes producing the same effect. A logical example of this principle is that a person who leaps from a high-rise building will generally perish; on the other hand, it is not necessary that every deceased person must have jumped from a building. There are many other causes that could have led to his demise. Similarly, in the case of ownership of assets, there are two effects which are not necessary corollaries of the existence of ownership in the assets. Considering the fact that a company is a juristic person as explained in the previous chapters, neither it nor the assets belongs to any shareholder. The company and its assets belong to this new juristic person. Thus, when the company is dissolved, a sort of metaphysical and theoretical “death” of the company takes place. In such an instance, the company can no longer remain the owner of its own assets thus its residual assets must be wound up. The laws of the state suppose that who better to receive these assets than the shareholders; therefore, they allocate the assets to them. Hence, receiving these assets does not necessarily substantiate ownership of the assets prior to the “death” of the company. A similitude of a deceased relative and an heir can also be presented for better illustration. Inheritance of the assets of a relative does not necessitate that the heirs be the owners of the assets prior his death.

Furthermore, we fail to see how proportionately sharing in the profits and loss of a company necessitates ownership of the assets. These two conditions can easily be allocated by the company for non-owners as well. They merely have to state that in return for purchasing the share certificate, a person will receive the right to claim a proportionate profit in the event of gain. Similarly, they add the disclaimer that in the event of loss, the value of the certificate will also lose its worth. Such conditions in no way prove ownership of the assets.

This group of Ulama further premises that the main argument to disprove shares representing ownership of the assets is the fact that the assets of the company cannot be seized by the creditors of a shareholder in the event of his personal insolvency. These Ulama are under the assumption that this is the only proof to show that a shareholder is not the owner of the assets of the company. Hereunder we will present the understanding of the other Ulama who do not perceive the shareholder to be the owner of the assets along with further substantiations from case law decreeing thus.

Understanding of the Ulama who Prohibit Shares coupled with Juridical Corroboration:

If a person holds a share in a company, it does not imply that he owns the assets of the company. Linguistically, one would assume that the word ‘share’ denotes a portion or a percentage of ownership in the assets of a company. However, this is not the case. The definition of the word “share” has undergone many changes in history resulting in a departure from its literal meaning to more of a figurative meaning. The following is a passage of The Conceptual Foundations of Modern Company Law describing this metamorphosis of meaning:

“Throughout the eighteenth and early nineteenth centuries, the term 'share' was "used in its natural sense, namely as an appreciable part of a whole undertaking". [22] To possess a share in a joint stock company implied ownership of a share of the totality of the company's assets. "Shareholders", says D. G. Rice, "were regarded as owners in equity of the company's property.”[23] It followed that, as property, shares were directly related to and co-extensive with the assets of the company and that their legal nature depended on the nature of those assets. Shares could be either real or personal estate depending on whether or not the company owned land. When the courts had to decide whether shares (in both incorporated and unincorporated companies) were realty and, therefore, within the Statutes of Mortmain or Frauds, they uniformly held that the matter turned on the nature of the company's asset. [24] In the early 1830s it was still consistently being held that company shares were realty if "the corporation were seized of real estate".[25] Crucially, while the share was legally perceived as an equitable interest in the company's assets, shareholders – the equitable co-owners of those assets – were necessarily closely identified with their companies. They could not be 'completely separate'. From the 1830s, however, the legal nature of shares began to be re-conceptualised, and by the mid-nineteenth century the close link between shares and the assets of companies had been severed. The crucial case, Bligh v Brent, was decided in 1837 and concerned shares in an incorporated waterworks company. The issue before the court was whether the company's shares were realty and within Mortmain. In accordance with the prevailing view, counsel argued that the nature of the company's shares as property depended on the nature of the company's assets. In every joint stock company, he asserted, "the shareholder has an estate of the same nature as the company". Despite the overwhelming weight of the authorities, the court rejected this view. They argued that the case turned on "the nature of the interest which each shareholder is to have", and in their view shareholders in incorporated joint stock companies had interests only in the profits of companies and no interest whatsoever in their assets. The shares were personalty, irrespective of the nature of the company's property.[26]Bligh v Brent was the turning point, although uncertainties remained for some years after, particularly in relation to the nature of shares in unincorporated companies and in companies whose business activities were closely connected to land. By the mid 1850s, however, these had largely disappeared. In Watson v Spratley, decided in 1854, the court had to determine the nature of the shares of an unincorporated mining company. It held that the matter turned on "the essential nature and quality of a share in a joint stock company", and declared its shares to be interests only in profits.[27] Henceforth, shareholders, even in unincorporated joint stock companies, had no direct interest in the physical assets of their companies. Shares were personalty irrespective not only of the nature of the company's assets but also of its legal status. They were an entirely separate form of property: legal objects in their own right. They had been freed from their direct link to the property of joint stock companies. By 1861 Sir John Romilly was asserting that "shares in joint stock companies . . . are, in fact, in the nature of property”.[28] Critically, as the share became property in its own right, a legal space emerged between incorporated and unincorporated joint stock companies -owners of the assets – and their shareholders – owners of the shares. The recognition of the share as a new form of property was not, however, without problems. The exact legal nature of this new form of property eluded and continues to elude company lawyers. As L. C. B. Gower openly admits, the question "What . . . is the exact juridical nature of the share?" is more easily asked than answered.[29]Lawyers know what a share is not – a direct interest in the company's assets – but not what it is.”[30]

From the above passage, we come to understand that by 1861 the word ‘share’ came to denote something other than a realistic representation of the assets of a company. However, no one as yet had placed some definition to a ‘share’. It was only in 1901 that the latest and current denotation of ‘share’ was defined. In Borland's Trustee v Steel Farwell J described a share in the following terms:

“A share is the measure of a shareholder in the company measured by a sum of money, for the purposes of liability in the first place, and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders inter se. The contract contained in the articles is one of the original incidents of the share. A share is not a sum of money… but is an interest measured by a sum of money and made up of the various rights contained in the contract.”

Ellis Faran explains this statement, “This description makes it clear that a shareholder is an investor: he pays a sum of money in the hope of earning of return. The shareholder's financial interest is in the company itself and it does not amount to a direct interest in the company's assets. These assets belong to the company which is a separate legal person. Thus in Macaura v Northern Assurance Co Ltd it was held that a shareholder did not have an insurable interest in the company's property.”[31]

Furthermore, supporting this definition of ‘shares’ another Judge in 1948, Evershed L J, passed the following ruling in Short v Treasury Commrs [1948]:

"Shareholders are not, in the eyes of the law, part owners of the undertaking (company). The undertaking is something different from the totality of the shareholdings."

To illustrate that this very denotation is still used today, the following excerpts of a 2003 appellation in the House of Lords will prove beneficial. Lord Millet in Opinions of the Lords of Appeal for Judgment in the Cause – Her Majesty's Commissioners of Inland Revenue v. Laird Group PLC stated: “The juridical nature of a share is not easy to describe. It is not a share in the company's undertaking, for the company owns its property beneficially and not in trust for its members: "shareholders are not, in the eye of the law, part owners of the undertaking" (see (Short v Treasury Commissioners [1948] 1 KB 116, 122, CA). It is classified as a chose in action, but this merely tells us that it is a species of intangible personal property. It is customary to describe it as "a bundle of rights and liabilities", and this is probably the nearest that one can get to its character, provided that it is appreciated that it is more than a bundle of contractual rights.” He further describes what these rights entail by stating, “The rights of the shareholders in a company are set out in its articles of association. In the case of ordinary shareholders they are normally those described by Lord Wilberforce in Joiner at p 1706-7: "rights to received dividends, if declared, rights to vote, rights in a liquidation to receive a share of surplus assets after discharge of liabilities." Moreover, as recent as 2006, the same denotation of a share was presented in Cambridge Gas Transport Corporation v. The Official Committee of Unsecured Creditors. Lord Hoffmann stated, “Their Lordships consider that this argument is based upon a misunderstanding of the nature of shares in a company. In the classic definition of Farwell J (Borland's Trustee v Steel Brothers [1901] 1 Ch 279, 288), ‘a share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second’. In the case of fully paid shares, the question of liability does not of course arise. So a share is the measure of the shareholder’s interest in the company: a bundle of rights against the company and the other shareholders. As against the outside world, that bundle of rights is an item of property, a chose in action. But as between the shareholder and the company itself, the shareholder’s rights may be varied or extinguished by the mechanisms provided by the articles of association or the Companies Act.”

The following is another citation clearly defining who the actual owner of the assets is and what the shareholders possess:

"Important consequences of the fact that a company is a separate entity existing apart from its members are the following:

(a) The company estate is assessed apart from the estates of individual members; consequently the debts of the company are the company’s debts and not those of its members. The sequestration of the estates of members will not lead to liquidation of the company and, conversely, the liquidation of the company will not necessarily entail the sequestration of estates of the members. The position is different with a partnership which does not exist as a separate person: the estates of the partners and that of the partnership are sequestrated simultaneously.

(b) The profits of the company belong not to the members, but to itself. Only after the company has declared a dividend, may the members, in accordance with their rights, as defined in the articles of the company, claim that dividend.

(c) The assets of the company are its exclusive property and the members have no proportionate proprietary rights therein. Only on liquidation of the company are members entitled to share in a division of the assets of the company." [32]

From the above judicial verdicts and legal texts we come to know that a share has, in our era, come to denote a set of rights rather than referring to partial ownership of the assets as previously understood. These rights generally entail voting rights during the Annual General Meeting, rights to a monetary payout referred to as a dividend in the event of a profitable fiscal term, and rights to the residual assets in the rare event of dissolution of the company.

The Fuqaha have codified the following principle that fits quite aptly in the case at hand,

والحكم قد يتغير بتغير العصر والزمان (ألمحيط البرهانية 12:155)

“The ruling will, at times, change with the changing of eras.”[33] As previously explained, the term ‘share’ in the previous era denoted actual ownership in the assets of a company; therefore, in such an era, purchasing and investing in shares would have been permissible according to the Shariah. However, as the times changed, the meaning of ‘share’ changed whereby a shareholder no longer purchased a fractional percentage of the company’s assets, therefore, in such an era, it will not be permissible according to the Shariah to purchase shares since such a transaction does not fulfill the Shar’i prerequisites of Shirkah (partnership). It is due to this reason that some illustrious Ulama of the past issued verdicts of permissibility regarding shares. However, it will not be correct for Ulama of the modern era to issue a Fatwa of permissibility based upon the view of the Ulama of the previous eras.

From the above passages, this much becomes clear that in the eyes of the legal and financial sectors, a shareholder is not deemed the owner of the assets of a company. It is important to bear in mind that it is the state that brings companies into their metaphysical existence. Therefore, the state decrees how the directors and shareholders relate to a company. If the state decrees that the shareholders do not own assets of the company, then under the authority of the state, the shareholder cannot own the assets. If the state decrees that the company, in itself as a juristic entity, owns all of the assets of the company, then under the authority of the state, only the company will be regarded as the owner.

We are convinced that if this proper understanding of companies and shares is presented before the Ulama, they will also issue the verdict of impermissibility. All of the Ulama agree in regards to two scenarios, namely, if the shareholder does not own the assets, his profit will be Riba and if he is the owner of the assets, then the profit will be permissible as long as the other preconditions of trade are upheld. The main difference rests upon the perception of who the owners of the assets are. Presenting the above-mentioned proofs clearly shows that the shareholder does not own the assets. Therefore, it is a natural and juristic corollary that all of the Ulama with this understanding pass the verdict of impermissibility.

The Fuqaha (Jurists) clearly mention that there is only one of three ways that a person can receive a profit upon his investment:

Growth of his owned assets in a partnership

Work conducted on behalf of the partnership as the case with a Mudarib

Bearing complete liability (as in the case of purchased assets on credit) despite not being the owner [34]

Bearing the above three pointes in mind, we come to know that the shareholder is not entitled to receive any amount of profit upon his purchase of shares. The shareholder neither bears complete responsibility of the assets of the company, nor provides any service for the company as a Mudarib, nor owns any percentage of the assets of the company whereby the profits earned through the shares could be termed as the growth of his personal assets. Thus, considering the fact that a shareholder receives dividends and profits in absence of any exchange, the surplus amount beyond his initial investment will be considered as interest. This ruling is based on the juristic definition of Riba, “Riba is any excess amount free from a reciprocal substitute or exchange.”[35]

لان الربا هو الفضل الخالي عن العوض (رد المحتار 5:169)

The Corporate Veil:

The concept of a company or a corporation existing as a separate juristic person is frequently referred to as a “corporate veil”. The corporate veil refers to an abstract cloak masking the founders, directors and shareholders of a company from the being held personally responsible for any action conducted on behalf of the company, directly or indirectly. All of the affairs of the company are deemed self-existent and attributed directly to the company itself as a juristic person. The actions of those who run the company will not be attributed to the individuals in their personal capacities, rather their actions will be deemed to be the actions of the figurative organs and limbs of the company as subordinates to the corporation. However, there are certain rare circumstances where the state decides to disregard the Corporate Veil and the juristic personality of a company and regards the fraudulent activities of directors or shareholders to be actions conducted in their personal capacities. In such a situation, the shareholder will not be able to mask his identity behind the Corporate Veil attempting to elude the law. Section 424(1) of the Companies Act reads:

“Where it appears that the business of the company is being carried on recklessly or with the intent to defraud creditors of the company, the Court may, on application, declare that any person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be personally responsible, without limitation of liability for all or any of the debts or other liabilities of the company as the Court may direct”.

The general rule is that a company including its directors and shareholders will be deemed as a legal entity. However, when the concept of juristic person is misused to commit fraud, defend crime or any other illicit activity, the law will regard the corporation or a segment of the corporation, namely the perpetrators of such misdeeds, as merely a coalition of persons and not as a constituent of the company.

“[T]he separate legal personality of a company is to be disregarded only if the court can see that there is, in fact or in law, a partnership between companies in a group, or that there is a mere sham or facade in which that company is playing a role, or that the creation or use of the company was designed to enable a legal or fiduciary obligation to be evaded or a fraud to be perpetrated.” [36]

One of the most oft cited cases of piercing the Corporate Veil due to fraudulent activity is the case of Jones v Lipman [1962]. In this case Lipman agreed to sell land to Jones but before completion of the contract he changed his mind and sold the land to a company which he and another were the sole directors and shareholders. The judges ordered specific performance (fulfilling the promised obligation) against Lipman and the company. The company was described as a device and a sham, “a mask which Lipman held before his face in an attempt to avoid recognition by the eye of equity.”

The court of law will only intervene in clear cases of deception and fraud. However, the court is very precautious in its approach striving to maintain the fundamental principles established to protect legal law-biding companies and its directors and shareholders.

An example of such precaution is the 2006 Supreme Court of Appeal case of Heneways Freight Services v Klaus Grogor. Mr. Grogor was the sole director and manager of a company that imported exotic cars. Heneways were clearing and forwarding agents contracted by Grogor. He applied to Heneways for credit and after being granted, he incurred a debt of approximately R300, 000. Grogor sent a post-dated check for the amount. However, before the date of payment arrived, he stopped payment on the check. His company filed for bankruptcy and thus was later liquidated. The Heneways did not receive payment and it seemed that they were left with no recourse against Mr. Grogor’s company. With no other alternative, Heneways sued Grogor personally for reckless and fraudulent trading under section 424(1) of the Companies Act. In their claim, Heneways presented evidence that Grogor had a habit of issuing post-dated checks on behalf of the company which were later stopped before the date of payment arrived. They claimed that Grogor was aware of the company’s unstable financial situation when he applied for credit. They alleged that he knew that his company would not be able to pay its debts when they became due. They argued that his business practices were fraudulent and/or reckless. In defense, Grogor admitted that the company was in financial straights thus he adopted the method of settling more pressing debts first and making arrangements to settle the others. He presented that the company was to be bought out by a large partner shortly after the R300, 000 debt was incurred. He claimed that debt was to be paid from the proceeds of that deal. He further stated that in the event that this deal did not materialize, the company would have been able to settle its debts by selling some of its assets to revive the company’s cash flow. The court accepted Grogor’s explanations and held that a reasonable businessman in his position would have acted in the same way. His conduct was not found to be reckless or fraudulent.

The central aspect of concern here is that only such members responsible for the reckless behavior will be held liable and not the innocent shareholders. When the personal liability is placed upon certain shareholders or directors, it will be placed upon the responsible parties directly involved and not upon all the shareholders as they were not directly involved in the fraud etc thus, they remain free from liability. Furthermore, in a typical scenario where no fraud or deception takes place and the company incurs debt and thereafter files for bankruptcy, the creditor will remain exploited with no legal recourse. The shareholders are absolved from any personal financial accountability despite the fact that the level of profitability is limitless. The above-mentioned Heneways Freight Services v Klaus Grogor case is a clear example of this injustice. Despite the fact that the secular law doesn’t consider this act as deceitful and fraudulent, the Shariah considers it nefarious and reprehensible. Assuming this company had shareholders, each shareholder would be proportionately responsible for this oppression, injustice and usurpation of wealth.

The fact that the state, at times, restrictedly disregards the juristic person and corporate veil does not negate the corruptive and iniquitous aspects of limited liability, lack of ownership of the assets and the legal reality of the “legal entity as a whole in respect to the general shareholders.”

An apt example in the Shariah of a similar type of exemption from the general rule is the case of a person who gifts away a considerable amount of his wealth whilst on his death bed. In this scenario, the dying person is suspected of fraudulent activity by attempting to deprive some of his heirs from their rightful inheritance. Thus, the Shariah will restrict the transactions of such a person looking after the best interest of the public, namely the heirs who stand to inherit. The Shariah disregards the intrinsic right of the living person to transact in his own property in order to circumvent his fraud. However, it would not be proper to state that the Shariah does not consider a person to possess the right of disposal in his personal wealth. This case is merely an exception to the general rule. Similarly, it cannot be said that shareholders are personally held liable for the company’s debt or that the juristic person is merely a legal fiction; therefore, shareholders are not participants of the usurpation of wealth and are the legitimate owners of the company respectively. The seldom cases where the state pierces the Corporate Veil is an exception to the general rule and it applies in a very restricted manner to specific individuals. It does not encompass the normal shareholders of a company who will still be participants to the injustice of limited liability and the sin of earning interest upon un-owned assets.

CHAPTER THREE

CONCLUDING SUBSTANTIATIONS

In this chapter, we will discuss various Fiqhi (Juristic) substantiations for the impermissibility of shares. This chapter is presented last and it is intended primarily for the consideration of the Ulama as the majority of substantiations deal with juristic principles and terminology. The layman will have difficulty in grasping such terms and concepts; therefore, it should be noted that this is not intended for the general masses.

We will attempt to dissect the purchase of shares as a compound contract into its base transactions and thereafter analyze each phase of the transaction in order to place it in its proper Shar’i classification for the purpose of deriving an overall ruling.

Firstly, the shareholder has been likened to a partner in a Shirkah; therefore, since a company or corporation has been likened to a Shirkah, we will entertain this premise and delve into the various possibilities therein. As is known to the honorable Ulama, in order for a person to enter into an existing partnership, he / she must purchase a certain percentage of the company assets so that he can become an undivided partner in every portion of all the assets. A person cannot enter into a Shirkah without this essential phase. The same concept applies to a new Shirkah in that Khulta (mere pooling of wealth) will not constitute the Shirkah. The Shirkah will only convene after purchasing commodity with that joint wealth. Thus, the very first step of becoming a partner in the company is purchasing undivided assets from it. This demands that a Bai’ (contract of sale) take place between the prospective partner / shareholder and the company. In a Bai’ there must be a seller and purchaser. In the case at hand, the seller is the company and the purchaser is the prospective shareholder. In defining both of the parties on either side of the transaction, there are two possibilities;

1. where the Shariah recognizes the concept of a juristic entity with its own ذمة

2. where the Shariah does not recognize the juristic entity as such

In subsequent scenarios, we will see that its recognition and lack thereof will not bear any relevance to its permissibility.

In the first scenario, the prospective shareholder will accede to purchase a specific percentage of the company’s assets from the company itself. As we all know, the basic Rukn (element) of Bai’ is Ijab (offer) and Qabul (acceptance). One party presents an offer and the other party has the right to accept or reject the offer. The purchaser will present its offer to purchase “shares” from the company which he deems to represent a specific percentage of ownership in the company’s assets. However, there is no acceptance on the very same offer. As previously mentioned, the company, by law, is not selling percentages of the physical assets rather, it are merely selling a “bundle of rights” as a “share.” Thus, we have inconsistency and discrepancy in the very Arkan of the Bai’. With such discrepancy in the Arkan (base elements), the Bai’ cannot take place, hence, the partnership will cease to exist for the prospective shareholder since he failed to purchase an undivided percentage of the assets of the company. Assuming that both parties concur on the Mabee’ (article of sale), in the transaction, then the Arkan of the Bai will be established. In this case, the purchaser will concur with the company in that the Mabee’ will consist of merely a “bundle of rights.” In this regard, the Fuqaha have clearly stated, “The independent sale of rights is not permissible.”[37]

وبيع الحقوق بالانفراد لا يجوز (تبيين 4:380)

Thus, in this scenario, the partnership still fails to materialize. Firstly, due to the fact that such a transaction is neither permissible nor recognized by the Shariah. Secondly, due to the fact that the partnership can only commence after purchase a percentage of the physical assets and not a “bundle of rights.”

Before continuing further, it is important to understand why the commodity of sale is a “bundle of rights” and not a percentage of the assets. We previously mentioned that the respected Ulama who permit shares presume shares to be ownership in the assets based upon two indicative after-effects of ownership, namely;

1. The shareholder receives an equal portion of the profits as well as suffers from the loss of value in his share as opposed to bonds where he is guaranteed to receive a certain percentage of interest regardless of whether the company it profitable or not. (cite)

2. The shareholder is entitled to receive the residual assets of the company after dissolution in proportion to his shares as opposed to receiving the exact value of the share certificate as in the case with bonds and other loans.

These effects merely indicate to the possibility of ownership of the assets. However, as previously mentioned, effects can have more than one cause. Therefore, such evidence is insubstantial.

As previously mentioned, a juristic person is an abstract intangible creation of the state. The state defines what a juristic person is and what role it plays in the workings of a company. If a juristic person is likened to Waqf (trust) as indicated by the Honorable Mufti Taqi Uthmani, then the authority of defining the juristic person and its function is similar to what a Waqif does in the initiation of a Waqf. The Fuqaha state, “The conditions set by a Waqif (initiator of a trust) are similar to the clear text of the legislator of the Shariah.”[38]

شرط الواقف كنص الشارع (البحر الرائق 5:246)

This precept demands that all conditions laid down by the Waqif in the initiation of the Waqf (trust) be treated similar to a direct text of the Shariah in that all conditions must be fulfilled without fail by the guardians of the Waqf. A Waqif initiates the existence of a Waqf; similarly, the state initiates the existence of the company. Therefore, similar to the conditions laid down by the Waqif, the conditions and directives of the state must be recognized and upheld. Among various conditions, one includes the company being the sole owner of all the company’s assets. The Ulama, therefore, cannot disregard the definitions and denotations presented from the state in regards to companies and juristic persons when deliberating over the aspect of shares. These parameters play a significant role in regards to how transactions are classified in terms of the Shariah. For example, when a shareholder purchases a share from a company, technically he is not purchasing any assets of the company because the law states that a shareholder does not purchase assets of the company, thus during the contractual agreement, the director or agent of the company has one notion is mind, namely, selling only rights to gain a future profit, whereas the purchaser might have a different notion in mind, namely, purchasing ownership of the assets.

Moreover, the Fuqaha mention the following principle,

أن الدلالة لا تعتبر إذا وجد الصريح

“The Implicit will not be granted any consideration in the face of the Explicit.” [39]

From this principle, we understand that the substantiation used by such Ulama will not be considered in the face of an explicit edict given by the courts in regards to the nature of a share. The court has explicitly defined a share as a “bundle of rights”; therefore, any implicit indication by means inference etc that a share refers to a percentage of the assets cannot be juristically entertained.

In the second scenario, namely in the event that the Shariah fails to recognize the concept of a juristic entity as a viable entitythat possesses its own ذمة capable of entering into transactions, possessing and bestowing ownership, all of the transactions will be directed and attributed to the founding members of the company. Similar to the above scenario, the prospective shareholder will be incapable of purchasing the required assets of the company because, it is not the assets that are being sold, rather “shares” i.e. “bundle of rights.”

The question that might linger in the mind is that what if the purchaser and seller both agreed to this sale of “bundle of rights” as opposed to the assets?

The answer is that the proceeds of such a transaction will be considered as Riba. As previously mentioned, the Fuqaha state that there is one of three ways to earn a profit;

1. Growth of his owned assets in a partnership

2. Work provided upon the assets on behalf of the partnership as the case with a Mudarib

3. Bearing complete liability of assets despite not being the owner as the case with Shirkat al-Wujuh etc.

In the mentioned transaction and so-called partnership, the “shareholder” neither owns any physical assets where the profit will be considered as the growth of his assets, nor does he provide any work for the company as a Mudarib nor does he bear any liability for the assets of the company. Thus, the proceeds awarded to him will be free from any exchange in a binding contract which fits the exact definition of Riba;

الربا هو الفضل الخالي عن العوض

Our opinion, based upon the above-mentioned substantiations, is that purchasing shares is not permissible and receiving proceeds upon them will be Riba. We urge the public to refrain from investing in such ventures. There are other permissible income generating alternatives. Thus, we advise looking into other alternatives as a means of saving one’s income from Haram wealth. May Allah Ta’ala grant us all the courage to remain steadfast upon all the injunctions of Shariah. Ameen.

[30]Paddy Ireland; Ian Grigg-Spall; Dave Kelly, The Conceptual Foundations of Modern Company Law as in the Journal of Law and Society, Vol. 14, No. 1, Critical Legal Studies. (Spring, 1987), pp. 149-165.

I own two lands and wish to distribute them amongst my children, grandchildren in my life. How should I do with the partition?

Bukhari & Jalsa

17th Bukhari Shareef Khatm and 24th Annual Jalsa took place at the Madrasah Facilities. on Monday 24th Dec 2018 after Maghrib, the Kahtm e-Bukhari took place.
On the following day, the students' programme and the completion of Hifz and Qiraat took place as well in the presence of our honourable guests: HADHRAT SALEEM DHORAT SAHEB (Senior Ustaad of Hadith, Leicester (U.K) & HADHRAT MUFTI EBRAHIM SALEJEE SAHEB (principal of Madrasah Ta'leemuddeen, Isipingo beach....................................................................................................We supplicate to Almighty Allah Ta’ala that He accepts our humble effort in the propagation of His Deen, grant us sincerity, determination and courage to continue serving His Deen in a manner that is pleasing to Him until we breathe our last, Ameen.